Immigrationboards.com

Hi I am a EEA national from Poland. I have been recenly refused a permament residency for me and my family. my husband is Non EEA and we have been married and living in the UK for 7 years next month. He has been issued a 5 years visa before which finish in feb this year. during the period I had my little boy and stayed at home with him while my husband was working. home office refused the application for pemament residency saying for the period of 18 months I wasnt exsersising the threaty rights, which was the time I was looking after my baby, and the husband was working. I have send the appel and have the court case next week. any advice how we can defend ourself??

According to the Caseworkers guidelines:

to qualify as exercising the treaty right: you should either be self sufficient and have a comprehensive medical insurance or be working.

Applying on the merit of your husband working does not qualify you.

I hope this helps

M

so you saying that the fact that we were a family an he was working and I had to take care of the baby during that time is not taken into consideration? I also had enough money in my account during that time to be able to take care of myself.

It is taken into consideration, in that there is scope for you to exercise your treaty rights by being "self sufficient" (i.e. depending on your husband's income).

But to be self-sufficient you must have "comprehensive sickness insurance".

You can also still be considered as a "worker" if you take maternity leave around the time you have a baby, and you then return to work afterwards.

katemaxi,

If I were in your situation, which I am not, I think I would appeal. Other members of the board might not advise you to do that, or would say it is a waste of time. But I am not so sure...

First off, you have no downside. Worst that happens is they uphold the original decision, which puts you back to where you are right now.

First, note a few things about your current situation:
(1) You have been living and exercising treaty rights in the UK.
(2) You could have taken up to one year outside of the UK "for the birth of a baby" without it having affected your residence continuity and during that time you would not have required any health insurance.
(3) You have very comprehensive health insurance: your NHS coverage. It covers "all pre-existing medical conditions that require medication and/or treatment as well as any treatment that may be required for serious or long-term medical conditions". You are fully entitled to it. Note that the requirement is not that you have "PRIVATE" comprehensive health insurance
(4) You were not an undue "burden on the public finances" - you were simply having a baby

Q: How much of the time you were off work were you on maternity leave?


http://www.ind.homeoffice.gov.uk/siteco ... dlaw/ecis/
[quote]CHAPTER 9 – APPEALS
3.4 Sickness Insurance

Persons must not become a burden on the public finances of the host Member State. In paragraph 93 of Baumbast, the ECJ found that it was disproportionate for a lack of sickness insurance that covered emergency medical treatment within the UK to be a reason for refusing to grant a right of residence on this basis. Furthermore, the law in regard to the NHS prevents us from restricting people from obtaining medical treatment after they have been here for more than 12 months.

Presenting Officers should seek to argue that an EEA national who holds no form of medical insurance is not appropriately covered. Where evidence of medical insurance is produced, it must clearly demonstrate that the EEA national and their families are covered in respect of all pre-existing medical conditions that require medication and/or treatment as well as any treatment that may be required for serious or long-term medical conditions. Any arguments should focus on whether or not the EEA national or their families could be considered an “unreasonable burdenâ€

I first came to the country in 2003 and applied for the student visa ( got a student visa for a year)..finished the course in 2005. in 2004 poland joined the EU so didnt need any visas afterwards. in 2004 got married and had a baby to non EEU husband.. I was working before I had a baby in 2004 but because it was only for few months I didnt qualify for maternity leave. Had a baby in nov 2004. then in aug 2005 I found a new job which I carried till aug 2006, when I decided to stay with my baby for a bit since husband had a full time job.( On the application I started counting my years from that augst 2005). then from sep 2006 I stayed at home with baby, while he was working. Sep 2007 I started college which I finised jun 2010, during the collage I also had some part time jobs, and since finishing I have been working.
his visa is ffinished just now, and they refused us this permamnet residency, saying I didnt provide enough documents covering continuos 5 years for myself, not taking into consideration that we were actualy a family and he was working all those years full time, providing for his family. I never wanted to go for jobseeker allowences as I knew that the situation was just temprorary, and as soon as I get the education then I get a good job.
when it comes to the Health insurance, does EHIC card counts cause I had that all the time.?
next thurs is the case in the court, do you think we goning to convince the judge?

The 2006/2007 gap when you were looking after your baby is where you might have stopped the clock for PR if you didn't have insurance. However, if you were working during the time you were a student, then those years may still count as your being a worker (and if you did the WRS registration in 04-05 then you wouldn't have had to do it again). You could become eligible for PR next September if that's the case.

A note on "comprehensive sickness insurance" as well: you have had a right to NHS treatment in the UK ever since you completed one year here as a worker. So since 2005, you have been eligible for NHS treatment. As he is working, my understanding is that your husband has also similarly been entitled to NHS treatment in his own right. So during any period that might count for PR, you have been eligible for NHS treatment.

There used to be a definition of "comprehensive sickness insurance" on the UKBA website that said "Insurance that will pay for any medical treatment required in the United Kingdom by someone who is not entitled to treatment from the National Health Service. " You can find it if you search on the site, but it hasn't been changed since 2007 and isn't attached to a particular page any more: it might be worth printing it out and presenting it if you do decide to appeal.

Kitty wrote:There used to be a definition of "comprehensive sickness insurance" on the UKBA website that said "Insurance that will pay for any medical treatment required in the United Kingdom by someone who is not entitled to treatment from the National Health Service. " You can find it if you search on the site, but it hasn't been changed since 2007 and isn't attached to a particular page any more: it might be worth printing it out and presenting it if you do decide to appeal.

http://www.ukba.homeoffice.gov.uk/gloss ... e&letter=C

Cheers Directive...